CHAM SIU TSAN v. CHAM KIN HUNG

HCA3207/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.3207 OF 1996

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J U D G M E N T

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Introduction

1. This action arose out of the parties' dispute as to the succession of the landed property known as (a) Lots Nos.217, 236, 391, 489, 562, 564, 571, 626, 705, 727, 748, 498, 14, 87, 212, 302, 314 and 322 in Sai Kung Demarcation District No.275 and (b) Lots Nos.491, 526, 694, 838, 915, 918, 1011, 1029, 1103 and 1077 in Sai Kung Demarcation District No.276 (collectively "the Property").

2. Initially, the parties were represented and the plaintiff was legally aided. But they now all act in person. The plaintiff did not give any oral evidence to support his claim. The defendants gave evidence on their case. They also called two witnesses whose evidence, however, for the reason which will become apparent later, is now of little significance.

3. The Property is situated in the New Territories. Succession thereof is governed by Chinese customary law : see Wu Koon Tai and another v. Wu Yau Loi [1996] 2 HKLR 477, PC. The parties had alluded to Ta Ching Lu Li in their pleading but they have not adduced any expert evidence in this respect. I have explained to the parties the position and the implications at the outset of the trial. But the absence of such evidence is now immaterial. The reason will become obvious in a moment.

Facts

4. The facts are largely not in dispute and may be summarised as follows.

5. Mr Cham Yat Shing was the registered and beneficial owner of the Property. He had four sons, one of whom died in his infancy. Mr Cham died on 29 July 1977, survived by his other three sons, Cham Sang and the defendants, Cham Kin Hung and Cham Kam Sang.

6. On 11 June 1980, the defendants applied to the Sai King District Office to succeed the Property, claiming that they were the lawful heirs of their father's estate ("the 1980 application"). It was supported by the then representatives of Tai Long Village. Cham Sang's name, however, did not appear in the application.

7. Acting under section 17 of the New Territories Ordinance, Cap.97, Sai Kung District Office approved the application in May 1981 ("the 1981 approval"). On 17 July 1981, the defendants were duly registered as the tenants in common of the Property.

8. Cham Sang and his son, the plaintiff, lived in the Mainland. He died on 11 June 1993. After coming to Hong Kong to settle, the plaintiff commenced the present action on 20 March 1996. He claims that he is entitled to succeed one third of the equal and undivided parts or shares of and in the Property as a tenant in common with the defendants ("the succession claim").

9. Under various sale and purchase agreements made in 1994 and 1995, the Property was sold to a third party. But according to the 2nd defendant, the agreements were all cancelled in November 2001. The plaintiff does not seek to dispute this point.

The succession claim

10. The defendants originally denied the succession claim. But having considered the matter further, they now concede that the plaintiff is entitled to the succession claim. The evidence of their witnesses is mainly on the succession claim. Given the defendants' concession, their evidence in this respect has now become immaterial.

11. In order to substantiate his claim, the plaintiff has to prove that his father was entitled to succeed the Property under the relevant Chinese customary law : see paragraph 3 above. However, in view of the defendants' concession, the absence of such expert evidence is no longer fatal to his claim.

Other relief

12. The plaintiff also seeks to revoke the 1981 approval. He alleges that it was obtained by fraud in that the defendants all along knew that his father, Cham Sang, was also entitled to succeed the Property but they deliberately failed to disclose the same in the 1980 application.

13. The defendants do not deny that Cham Sang was so entitled. Nor do they dispute that they failed to include his name in the 1980 application deliberately. Their explanation is that their father had told them that because of Cham Sang's active involvement in politics in the Mainland, they should not disclose his identity to others. Cham Sang himself also took the caution of not disclosing his true name in the letters that he wrote to the family in Hong Kong. He stated his name as Cheng Sang. The defendants were all along laboured under an impression that they should not disclose the true identity of Cham Sang to any stranger; lest any harm might be caused to him. They therefore did not include his name in the 1980 application. However, they had never intended to deprive Cham Sang of his right in the Property.

14. The burden of proving fraud, in my judgment, lies squarely on the plaintiff. He has adduced no evidence whatsoever to contradict the defendants' evidence as summarised above. I accept the defendants' explanation why they did not include Cham Sang's name in the 1980 application. Their act did not amount to any fraud at all. The plaintiff's claim for revocation of the 1981 approval therefore fails.

15. The plaintiff also alleges that the defendants had failed in their duty as constructive trustees of the Property for his benefit to upkeep a house situated on the Property, causing it to collapse some years ago. He consequently claims for damages.

16. According to the defendants, the house was a small house built in the 1930s. The Property was situated in a remote area. They had moved out of the Property to Sai Kung Town in 1976. The Property and the house had since then been left vacant. In the mid-1980s, the 2nd defendant engaged a person to carry out remedial work on the house, which was then in a dilapidated state. The 2nd defendant had paid $5,000 to that person but he failed to carry out the remedial work. The house subsequently collapsed.

17. Again, the burden of proving any breach of duty on the defendants' part lies with the plaintiff. He has not adduced any evidence to advance his case or to contradict the defendants' evidence. I accept the defendants' evidence and do not find that there is any breach of any duty on their part.

18. Lastly, the plaintiff claims for loss of enjoyment of the Property. But he has not adduced any evidence in support. I am not prepared to draw the inference that he had been deprived of enjoyment of the Property, which had been left vacant at all material times, simply because his right to succeed in the Property was not acknowledged by the defendants in the past.

Conclusion

19. For the above reasons, I will make a declaration that the plaintiff is entitled to succeed to one third of the equal and undivided shares of and in the Property as tenants in common with the defendants. The claims for revocation of the 1981 approval, damages to the house and damages for loss of enjoyment of the Property are all dismissed.

Costs

20. The plaintiff has been successful substantially, the succession claim being the main relief prayed for. I see no reason why costs should not follow the events. The plaintiff is entitled to costs of this action, to be taxed if not agreed, and I so order.

21. The plaintiff further says he is entitled under Order 62 rule 28A to two thirds of such fees as may be chargeable by solicitors. I do not propose to deal with this question here. It will be decided by the taxing master later, if necessary.

22. The plaintiff finally complains that there had been substantial delay in the proceedings and asks me to invoke Order 62 rule 8, Rules of the High Court to sanction the lawyers involved. He says that the lawyers for the parties must have been acting in collusion to cause the delay. There is no doubt substantial delay but on the materials before me, the reason is not apparent. The defendant's allegation that the lawyers acted in collusion is no more than a mere suspicion. I am not satisfied that this rule should be invoked. Accordingly, I refuse his application.